Sunday, June 08, 2008

On Not Getting It (UPDATED)

Carolyn Wright says supporters of the orphan rights legislation like me (I didn't know I was one!) "don't get it" when we point out that registration with the new electronic databases the legislation contemplates would not be required. While she concedes that the proposed legislation "does not make registration with the private registries mandatory," she nevertheless argues that "registration will be required if photographers want the same protection for their works as they have now" and that "the OW Act takes away the statutory damages option unless the photographer registers the work with the private registry/registries."

I think she's just wrong about that. Imagine a work whose author can easily be found with any reasonably diligent search. Now imagine, too, that the author neglects to register the work with the private registries. Under those circumstances, the proposed legislation would not "take away the statutory damages option" because the orphan works provisions only come into play at all where an author cannot be found with a diligent search, which, by assumption, is not the case in our example. An author who can be found with a diligent search doesn't have to do a thing to retain precisely "the same protection for their works as they have now." So it is simply not the case that "the OW Act takes away the statutory damages option unless the photographer registers" with the private database(s).

If the response is, "yes, that may be so, but the problem is with your assumption: in the real world, many, perhaps most, authors will not be so easily found," that doesn't change the equation. If you took the private database provisions out of the proposed legislation, the hard-to-find author would be no better off: all the database does is help him defeat an argument that he couldn't be found with a diligent search. Take the database provisions off the table, and the proposed legislation is even worse for authors.

One other odd feature of Carolyn's argument. Her complaint is that the proposed law "takes away the statutory damages option unless the photographer registers the work" (with the private registry/registries) -- but, of course, to possess the statutory damages option in the first place one of the things a photographer must do is register the work (with the Copyright Office). Leonard D. DuBoff and Christy O. King, authors of Art Law in a Nutshell, make exactly this point:

"It is clear from the pending orphan works legislation that there is no coercion to have copyright owners register their copyrights in and to their works with the Copyright Office since that already exists in the current copyright statute. Under current law, a copyright owner cannot maintain a lawsuit for copyright infringement without first registering the work, and if the copyright is not registered with the Copyright Office before an infringement occurs, the copyright owner of the work being infringed may recover only actual damages and obtain an injunction. In addition, the copyright owner is not entitled to recover statutory damages or attorney fees. ... Thus, the benefits to be derived from early registration with the Copyright Office are already law and not a new attempt by Congress to coerce copyright owners into registering their works."

This is not meant as a defense of the orphan works legislation generally. There are reasonable grounds for opposing the legislation, and I've discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them.

UPDATE: Carolyn responds: "Mr. Zaretsky is correct: '. . . all the [private] database does is help [the photographer] defeat an argument that he couldn't be found with a diligent search. Take the database provisions off the table, and the proposed legislation is even worse for authors.' No doubt. If we are forced to have OW, we need some way - perhaps with the private databases - to ensure that infringers can't use a work they claim to be orphaned when the owner still has rights. But copyright law as it exists today - without Orphan Works at all - is much better than any of these proposed options."